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Killer Burger and competitor battle over burger names, recipes

Updated on August 15, 2017 at 9:10 AMPosted on August 11, 2017 at 4:27 PM

Screen shots of Facebook posts were presented to a federal judge as evidence this week in Killer Burger's move to get a court order barring Rock and Roll Chili Pot from selling the "Epic Burger.'' Killer Burger argues that the owners of Rock and Roll Chili Pot stole their "ideas, goodwill and distinctive trademarks,'' after swiping its secret recipes.

Screen shots of Facebook posts were presented to a federal judge as evidence this week in Killer Burger's move to get a court order barring Rock and Roll Chili Pot from selling the "Epic Burger.'' Killer Burger argues that the owners of Rock and Roll Chili Pot stole their "ideas, goodwill and distinctive trademarks,'' after swiping its secret recipes.
(Court exhibit )

Owners of the popular Portland Killer Burger restaurants urged a judge this week to order a competitor to stop selling a burger with the same name as one of its specialties, the "Epic Burger.''

"This is stealing,'' said Thomas Ped, an attorney for Killer Burger.

Thomas Southard, one of the founders of Killer Burger, said the company last year bought out shares of co-founder Mark McCrary, who signed an agreement not to disclose any of the restaurant's secret recipes.

McCrary and his wife, Robin McCrary, then opened up their own restaurant, Rock and Roll Chili Pit Inc., just two blocks from Killer Burger's flagship location in downtown Portland.

The McCrarys this spring added two burgers to Rock and Roll Chili Pit's menu – the "Epic'' and "Black Molly'' – both lifted straight from Killer Burger's fare, Southard contends.

"Mr. McCrary is nakedly ripping off the Killer Burger name and products to promote his rival business," Ped wrote in court papers. "This is clearly designed to, and is likely to succeed in, confusing consumers as to the origin of the burgers sold by the RRCP restaurant."

On Thursday, Killer Burger urged Chief U.S. District Judge Michael W. Mosman to issue a temporary restraining order to stop Rock and Roll Chili Pit from selling the burgers.

Rock and Roll Chili Pit countered that Killer Burger doesn't own the trademark for the Epic or Black Molly burgers, and Rock and Roll's recipes are different.

Their lawyer also questioned why Killer Burger waited until the busy "Burger Week'' in the city to file its lawsuit and take the Chili Pit to court.

Rock and Roll's attorney Katie Haraguchi called the timing of the lawsuit a "tactical and unfair" move by Killer Burger.

"Is it just coincidence this is playing out during Burger Week?'' Mosman asked in court.

"I didn't know it was Burger Week,'' Ped replied. "I can assure you there was nothing intentional about that.''

Among the evidence provided to the court: Facebook posts in which Rock and Roll Chili Pit and Robin McCrary boasted that the restaurant was offering the "EPIC'' that began at Killer Burger.

Above a photo of a man biting into a thick burger, one of Robin McCrary's Facebook posts said, "He designed it for his previous burger place. He brought it with him to his new burger place. It's not Killer. It's Rock and Roll. It's EPIC.''

Killer Burger says its Epic burger features pulled pork, bacon and coleslaw. The Black Molly, Southard said, was named after his dog and offers a smoky house sauce, grilled onions and house-brined green chilies.

"Mr. McCrary is now trying to reassociate himself and his new company in the public's mind with the Killer Burger brand," Ped said. "Without an injunction, Mr. McCrary can essentially free ride on Killer Burger's efforts, while at the same time interfering with Killer Burger's branding, quality control, and strategic planning."

A restraining order would serve the public interest in allowing patrons to no longer be deceived or confused about which burger joint has the genuine "Epic'' or "Black Molly," Ped argued.

Mosman said he wasn't sure about the public interest test in this case and then added with a straight face: "The public is entitled to really great hamburgers.''

Rock and Roll Chili Pit's lawyer said someone in Chicago owns the trademark for the name "Epic'' burger, so Killer Burger has no standing to argue trademark infringement.

She said Rock and Roll's actions don't confuse patrons -- a simple Google search turns up plenty of other places that sell an Epic burger. She also noted that Killer Burger had removed the Epic Burger from its menu in March and it wasn't due back until Sept. 1.

Rock and Roll Chili Pit isn't selling a copycat, Haraguchi said. "It's a different burger,'' she argued, down to its type of bun, cheese and spread.

The judge questioned the timing of the suit and motion for a restraining order.

"It appears nothing was done for two months to stop the sale of the Epic Burger,'' Mosman said.

Killer Burger sent a cease-and-desist letter to Rock and Roll on July 6, seeking to stop it from trying to profit off of Killer Burger's name, Ped said. But he acknowledged no other action had been taken until now to halt the sale of any of Rock and Roll Chili Pit's burgers.

Temporary restraining orders are remedies for emergencies, say when old growth timber is about to be cut and sold and another party wants to prevent the logging, Mosman said.

"If you have an emergency but don't do anything about it, it undercuts your claim,'' the judge said.

He denied Killer Burger's motion for a restraining order.

The two sides are expected to return for a Sept. 22 hearing when Killer Burger will seek a preliminary injunction against Rock and Roll Chili Pit as the case awaits trial.

Before the hearing came to an end, Haraguchi asked that her client, the owner of Rock and Roll Chili Pit, be excused, explaining to the court "it's one of the busiest weeks at his restaurant.''